[Introduced February 2, 2012; referred to the Committee on the
Judiciary.]

____________

A BILL to amend and reenact §22-18-17 of the Code of West Virginia,
1931, as amended, relating to the settlement of violations of
the Hazardous Waste Management Act by consent agreements as an
alternative to instituting a civil action in the circuit
courts of the state.

Be it enacted by the Legislature of West Virginia:

That §22-18-17 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:

ARTICLE 18. HAZARDOUS WASTE MANAGEMENT ACT.

§22-18-17. Civil penalties and injunctive relief.

(a) (1) Any person who violates any provision of this article,
any permit or any rule or order issued pursuant to this article is
subject to a civil administrative penalty, to be levied by the
directorsecretary, of not more than $7,500 for each day of such
violation, not to exceed a maximum of $22,500. In assessing any
sucha penalty, the directorsecretary shall take into account the
seriousness of the violation and any good faith efforts to comply
with applicable requirements as well as any other appropriate
factors as may be established by the directorsecretary by rules
promulgated pursuant to this article and article three, chapter
twenty-nine-a of this code. No assessment shallmay be levied
pursuant to this subsection until after the alleged violator has
been notified by certified mail or personal service. The notice
shall include a reference to the section of the statute, rule,
order or statement of permit conditions that was allegedly
violated, a concise statement of the facts alleged to constitute
the violation, a statement of the amount of the administrative
penalty to be imposed and a statement of the alleged violator's
right to an informal hearing. The alleged violator has twenty
calendar days from receipt of the notice within which to deliver to
the directorsecretary a written request for an informal hearing.
If no hearing is requested, the notice becomes a final order after
the expiration of the twenty-day period. If a hearing is
requested, the directorsecretary shall inform the alleged violator
of the time and place of the hearing. The directorsecretary may
appoint an assessment officer to conduct the informal hearing and
then make a written recommendation to the directorsecretary
concerning the assessment of a civil administrative penalty.
Within thirty days following the informal hearing, the directorsecretary shall issue and furnish to the violator a written
decision, and the reasons therefor, concerning the assessment of a
civil administrative penalty. Within thirty days after
notification of the director'ssecretary’s decision, the alleged
violator may request a formal hearing before the Environmental
Quality Board in accordance with the provisions of article one,
chapter twenty-two-b of this code. The authority to levy an
administrative penalty is in addition to all other enforcement
provisions of this article and the payment of any assessment does
not affect the availability of any other enforcement provision in
connection with the violation for which the assessment is levied:
Provided, That no combination of assessments against a violator
under this section shallmay exceed $25,000 per day of each such
violation: Provided, however, That any violation for which the
violator has paid a civil administrative penalty assessed under
this section shallmay not be the subject of a separate civil
penalty action under this article to the extent of the amount of
the civil administrative penalty paid. All administrative
penalties shall be levied in accordance with rules issued pursuant
to subsection (a), of section six of this article. The net
proceeds of assessments collected pursuant to this subsection shall
be deposited in the hazardous waste emergency response fund
established pursuant to section three, article nineteen of this
chapter.

(2) No assessment levied pursuant to subdivision (1), of this
subsection (a) above becomes due and payable until the procedures
for review of suchthe assessment as set out in said subsection
have been completed.

(b) (1) Any person who violates any provision of this article,
any permit or any rule or order issued pursuant to this article is
subject to a civil penalty not to exceed $25,000 for each day of
such violation, which penalty shall be recovered in a civil action
either in the circuit court whereinin which the violation occurs
or in the circuit court of Kanawha County.

(2) In addition to the powers and authority granted to the
secretary by this chapter to enter into consent agreements,
settlements and otherwise enforce this chapter, the secretary shall
propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code to
establish a mechanism for the administrative resolution of
violations set forth in this section through consent order or
agreement as an alternative to instituting a civil action.

(c) The directorsecretary may seek an injunction, or may
institute a civil action against any person in violation of any
provisions of this article or any permit, rule or order issued
pursuant to this article. In seeking an injunction, it is not
necessary for the directorsecretary to post bond nor to allege or
prove at any stage of the proceeding that irreparable damage will
occur if the injunction is not issued or that the remedy at law is
inadequate. An application for injunctive relief or a civil
penalty action under this section may be filed and relief granted
notwithstanding the fact that all administrative remedies provided
for in this article have not been exhausted or invoked against the
person or persons against whom suchthe relief is sought.

(d) Upon request of the directorsecretary, the Attorney
General, or the prosecuting attorney of the county in which the
violation occurs, shall assist the directorsecretary in any civil
action under this section.

(e) In any action brought pursuant to the provisions of this
section, the state, or any agency of the state which prevails, may
be awarded costs and reasonable attorney's fees.

NOTE: The purpose of this bill is to authorize the Secretary
of the Department of Environmental Protection to propose
legislative rules to settle violations of the hazardous waste
management act by consent agreements, as an alternative to
instituting a civil action in the circuit courts of the state.

Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.